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Judgment
Rakesh Tiwari, J.—Heard counsel for the parties and perused the record.
The Petitioner was working in the office of Superintending Engineer, Rural Engineering Service, Allahabad Circle (hereinafter called as R.E.S.) since 1.12.1987, against a substantive post on ad hoc basis. He was appointed on 9.1.1991 against a vacant substantive post of peon, a class IV post in the office of Superintending Engineer, R.E.S. and was confirmed on the post vide order No. 81, dated 27.4.1996 (Annexure-2 to the writ petition). Five persons, namely, Sri Gyan Dutt Kushwaha, Sri Shiv Kumar, Sri Harish Chandra Pal, Sri Virendra Kumar and Sri Raj Kishore Bharti who were appointed in other circles in regular vacancies, were the ad hoc appointees. All of them were working as peon/class IV employees and got their transfers from other circles and joined the Allahabad Circle of R.E.S. on 16.6.1994, 5.5.1999, 8.5.1999, 1.7.1993 and 12.7.1996 respectively. It is alleged that since there were only four sanctioned class IV posts in the Allahabad Circle Office of R.E.S. Sri Shiv Kumar, Sri Harish Chandra Pal, Sri Virendra Kumar and Sri Raj Kishore Bharti who were earlier transferred from other circles to Allahabad Circle at their requests, were adjusted in/transferred to Varanasi Circle vide order dated 5.2.2000 passed by Respondent No. 1 so that there may not be any surplus class IV employees in Allahabad Circle.
Aggrieved by their adjustment/transfer order dated 5.2.2000 Sri Virendra Kumar and Sri Raj Kishore Bharti filed Civil Misc. Writ Petition No. 7940 of 2000 and Sri Shiv Kumar and Sri Harish Chandra filed Civil Misc. Writ Petition No. 7941 of 2000 before this Court. By order dated 15.2.2000 the effect and operation of the aforesaid order No. 206 dated 5.2.2000 of Respondent No. 1 was stayed by this Court.
It is further alleged that appointment order dated 9.1.1991 and the confirmation order dated 27.4.1996 in respect of the Petitioner was cancelled arbitrarily and without giving opportunity of hearing by order dated 16.3.2000 of Respondent No. 2 which is as under:
other language
Aggrieved by order dated 16.3.2000 the Petitioner field Civil Misc. Writ Petition No. 14662 of 2000 before this Court in which order was stayed by this Court by order dated 29.3.2000.
Respondent No. 1 thereafter by the impugned order dated 31.3.2000 cancelled the order of transfer/adjustment dated 5.2.2000 in respect of aforesaid Sri Shiv Kumar and Shri Harish Chandra Pal and the Petitioner was adjusted/transferred to Varanasi circle of Rural Engineering Service inspite of the fact that this Court by its order dated 29.3.2000 had stayed the operation of order dated 16.3.2000 cancelling the confirmation and regular appointment of the Petitioner treating the Petitioner as ad hoc employee.
Aggrieved by aforesaid order dated 31.3.2000 the Petitioner filed the present writ petition before this Court. The Court by its order dated 11.4.2000 stayed the effect and operation of the aforesaid order dated 31.3.2000 connecting W. P. No. 14662 of 2000 with the present writ petition. The order dated 31.3.2000 is as under:
other language
It is contended by the counsel for the Petitioner Sri R. K. Mishra that the present writ petition is not infructuous because the impugned order dated 31.5.2000 of Respondent No. 1 so far as the Petitioner is concerned, is not a mere transfer order and even if it could be considered a transfer order for the sake of argument, though not admitted, then a class IV employee like the Petitioner could at most be transferred within a Division and not out of the Division in view of the policy of the State Government as contained in letter No. 16/3/80, dated 28.5.1981, which provides that a class IV employee cannot normally be transferred out of a district, and, if necessary, can be transferred within a Division when the posts are available in the Division level cadre. It is stated that the impugned order is an adjustment-cum-transfer order and the fate of the present writ petition is dependent on the success or failure of W.P. No. 14662 of 2000 Radhey Shyam Vishwakarma v. Superintending Engineer and another, filed by the Petitioner before this Court, wherein the order dated 16.3.2000, cancelling the appointment and the subsequent order making the Petitioner a confirmed class IV employee in the Allahabad Circle of R.E.S. is under challenge and this Court has stayed the operation of the order dated 16.3.2000 by its order dated 29.3.2000. Therefore, if the aforesaid W.P. No. 14662 of 2000 succeeds and the Petitioner will be treated as appointed on regular basis and a confirmed employee against the substantive/vacant post in the Allahabad Circle of R.E.S., and the question of adjustment/transfer of the Petitioner will not arise and the impugned order in the present writ petition is liable to be quashed by this Court.
It is submitted that the question of adjustment/transfer of peons, class IV employees, working in the Allahabad Circle of R.E.S. arose because the number of class IV employees in the Allahabad Circle were in excess of sanctioned posts which is due to the fault of the Respondents because they transferred many class IV employees at their request from other circles where they had been appointed against vacancies in that circle to Allahabad Circle ignoring the fact that whether there was a vacancy or not in the Allahabad Circle.
There is another important factor bearing on the case of the Petitioner that he had been adjusted/ transferred when adjustment/transfer orders of other class IV employees working in the Allahabad Circle have been either stayed by order dated 5.2.2000 of this Court passed in Writ Petition No. 7940 of 2000 and Writ Petition No. 7941 of 2000 or cancelled by order dated 31.3.2000 of Respondent No. 1 (Annexure-6 to the writ petition). Therefore, the adjustment/transfer order impugned in respect of the Petitioner cannot be said to be valued.
By order dated 11.4.2000, passed by this Court the Respondents were directed to file counter-affidavit within two months, but no counter-affidavit has been filed even after a lapse of more than two years.
Transfer/adjustment order is also against policy decision of transfer dated 28.5.1981. The Petitioners are low paid employees and the order impugned will cause prejudice to them hence, such order is liable to be quashed.
The writ petition is allowed. The order dated 5.2.2000 is quashed. No order as to costs.